Admitting a new partner into the firm is a relatively straightforward
process once the qualified candidate is found. Generally, the
applicant is known to the firm either through association for an extended
period of time or, the candidate has experience acquired elsewhere and was
employed as the result of this skill and professional background.
Once the firm decides that it has the right candidate, there are still
some basics that have to be reviewed. Following is a brief overview of the
various issues that must be dealt with in order to set the stage for
admitting a new partner to the law firm.

Voting for Admission

In order to admit a new member to the firm, most law firm partnership
agreements require a vote of either the majority, 66-2/3 or 75 percent of
the partners. In the smaller firm a new partner must receive a
unanimous vote. As the firm grows larger the chance for a unanimous vote
all but disappears, and the odds of an applicant receiving a veto
increase. Some partnership agreements stipulate that the vote
reflect individual partners rather than partnership interests, viewing the
"one-partner, one-vote" as more democratic and avoiding placing
weighted votes in the hands of more powerful or senior partners.

Equity Interest

The next item that will probably be considered involves the new
partner's share in the profits and losses of the firm. There is no
standard answer to this question. Consideration will be based on
many factors including, but not limited to, the applicant's salary
history, contribution (measured generally by chargeable hours or clients
brought to the firm), and the nature and quality of the work performed.
Even a brief list of the many possible factors involved in setting a new
partner's income share reveals the subjective nature of this question and
how it will vary from firm to firm. In setting the income share of
the new partner, the partners will become aware that the pie must now be
cut in a different way, with more pieces and not necessarily more income
to be divided. In some firms either a committee or the senior
partner sets the new partner's share of profits for the initial year (and
sometimes for a few years thereafter). The new partner is then
deemed to have an ownership interest in the firm that is determined by the
ratio of his/her distribution for the year to the firm's total profits.
It is recommended that the new partner be informed of his/her share of
income and losses, and the method for determining the profit distribution.

Amount of Draw

In conjunction with setting the new partner's share of profits and
losses, the partnership must also determine the partner's monthly or other
periodic draw. The amount of the draw will, like the share of the
profits and losses, be based on several factors. These include the
salary of the attorney while an associate at the firm, the amounts drawn
by the other partners, the cash flow position of the firm at various times
during its fiscal year, the expected annual distribution of the partner,
etc. In some firms, in addition to the monthly or semi-monthly draws
regular quarterly or other special draws are scheduled, usually in
connection with required estimated tax payments.

Capital Contribution

It is more than likely that the capital of the firm will change as the
result of admission of the new partner. Either at the time of
election or at some point thereafter, the partners will be faced with the
question of how much capital the new partner will be asked to contribute
to the firm. Here again, the answers vary widely, with no known
formula fitting the requirements of all firms. In some firms, a "free-ride"
is given to the new partner for a specified period of time. The
supposition is that the applicant is not as capable of meeting a financial
obligation at the time of admission as he/she will be later. As a
solution, this merely postpones the decision for a time and means that the
remaining partners must carry the obligation in the interim. In some
cases, a token contribution is requested. The amount required
is usually based on the financial condition of the newly admitted partner.

Sooner or later, however, the capital contribution of the new partner
will have to be resolved. The partnership will have to determine
whether the new partner will contribute to the firm some portion of the
firm's capital account in existence at the time of admission, or whether
the newcomer will be expected to contribute his/her share for all future
capital requirements. Every firm will have to determine its own method for
resolving this question. In general, the amount of capital contribution
will be proportionate to the new partner's share of income and losses.

Dissemination of Firm

Financial Information Firms vary in their practice of how much and when
to divulge financial information to the new partner. From the point
of "disclosure," it is generally believed that the better
practice is to promptly provide the new partner with the firm's recent
financial statements. Most managing partners readily agree that no
purpose is served by keeping relevant information from the new partner,
and failure to disclose pertinent information may result in extreme
discomfort for both parties, or indeed more serious difficulties for the
firm.

Alternate Status

Some firms are considering the use of "alternative" forms of
membership instead of the more traditional form of partnership status.
The alternatives are being given various titles such as senior associate,
junior partner or non-equity partner among others. The practice is
being used, quite extensively, by the larger firms. The primary
motivation for considering an alternative is monetary. The reason is
simple. Chief among the changes brought about by the addition of a
new partner is the resultant reduction in the distribution available to
the other partners. In today's marketplace, increasing financial
pressures accompanied by a rise in operating expenses and stiffer
competition, may give a firm little choice but to consider alternative
forms of full membership.

The critical variation in this kind of affiliation involves the
applicant's limitation in terms of the net income (or loss) of the
partnership. Consequently, for many purposes, this individual is a
salaried employee although he/she may be able to vote or otherwise
participate in the governance or operations of the firm. Another way
of limiting the candidate's participation is to restrict his/her vote to
specific matters, or to deny the vote altogether. In addition,
attendance and/or participation in firm meetings may be permitted on a
full or limited scale, as required. Since the principal impetus for
placing limits on partnership is financial, the use of this category will
result in decreasing the right of specified individuals to share in the
profits of the firm.

Although consideration of the use of alternative forms of law
firm partnership has increased substantially in the past several years,
the firm should proceed with caution. The consequences for both the
firm and the individual should be fully considered. From the firm's
viewpoint, it will have to determine whether it will be required to insure
that it is not presenting to the public as a partner an individual who, in
fact, is not a partner but may be held to be one. How should the
firm characterize a partner who in one or more ways is less than a full
partner when, for instance, preparing a list of partners and associates
for submission to a directory such as Martindale-Hubbell, or new
stationery? In addition, the firm must consider the effect the "limited
partnership" will have on the attorney in question. A "half-way"
partnership can present both psychological and financial barriers for the
candidate who has spent perhaps years of service at the firm. In
today's highly mobile environment, the firm may well find that the
candidate opts to reject the form of partnership being offered, and begins
to search for an opportunity elsewhere.

Partner Departure

A departing partner, whether by death or otherwise, leaves a gap in the
performance of administrative duties as well as in providing services to
clients of the firm. Assumption of partnership obligations and debts
must be provided for, lest a creditor seeks to place the burden on one or
several of the continuing partners rather than the partnership as a whole.
Although the partnership bears primary responsibility for the firm's
obligations, a contract clause providing that the departing partner shall
be indemnified from continuing or new obligations of the partnership
should be included in the agreement. The agreement should also
provide that the departing partner remain liable for obligations incurred
prior to the withdrawal.

The agreement may also provide that the withdrawing partner must
assume some part of the continuing obligations whether the firm continues
or not. The two most common continuing liabilities relating to a
departing partner are the office lease and bank borrowing (usually for
furniture and fixtures). It is often desirable to deal with these
directly in the lease or loan agreement.

Payout Provisions

Withdrawing partners are entitled to a return of their capital and to
their proportionate share of partnership earnings. Against this,
however, there may be set-offs for debts of the withdrawing partner.
Further, the withdrawing partner may have committed acts that are in
breach of the provisions of the agreement. Consequently, a clause
providing for payment of capital accounts should contain provisions to
deal with such matters, including set-off of overdrawing and other
financial obligations (including perhaps a litigation reserve). In
addition, the clause may contain language withholding payment in the event
of a breach of the agreement by the withdrawing partner until the breach
is satisfied.

The immediate payment of capital and income accounts to
withdrawing partners may, however, severely damage the continuing firm's
financial condition. Consequently, the payout provisions should also
provide for deferred payments with the right to further defer payment if
the continuing firm's liquidity is severely affected by the payout.

Provisions regarding disposition of fees earned up to the time of
departure, prospective fees on completion of matters in process, and
disposition of matured interests of the departing partner in his or her
contributed capital and retirement funds, should also be included.
The allocation of retainers for services performed over a period of time
is often a point of contention. This may be avoided by providing that
these are to be considered on a monthly basis.

Another important question to be addressed is whether the departing
partner is entitled to an evaluation of the partnership assets and his
continuing share of the profits or liabilities accrued up to the date of
his departure. Absent a clause dealing with payouts, the withdrawing
partner is entitled to an accounting. We suggest that the firm avoid
the possibility of being involved in proceedings requiring a formal
accounting by including in the agreement a provision stipulating that the
report of the firm's independent accountant shall be binding.